Liability of Insurance Company if vehicle is driven by unlicensed person

Compensation to victim of motor accident and liability of Insurance:

Facts and questions of law:

Vehicles insured with the petitioners were involved in accidents resulting in filing of claim applications by the respective legal representatives of the deceased(s) or the injured person(s), as the case may be.

Defences raised by the Petitioner company in the claim petitions purported to be in terms of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) were :

(a) driving licence produced by the driver or owner of the vehicle was a fake one;

(b) driver did not have any licence whatsoever;

(c) licence, although was granted to the concerned driver but on expiry thereof, the same had not been renewed;

(d) licence granted to the drivers being for one class or description of vehicle but the vehicle involved in the accident was of different class or description; and

(e) the vehicle in question was driven by a person having a learner’s licence.

Continue reading “Liability of Insurance Company if vehicle is driven by unlicensed person”


Contradictory defence of tenancy and adverse possession in a suit for possession

Pleading and Proof:

Plea of being tenant raised for the first time in second appeal:

First, the respondent (defendant) had not raised such plea in his written statement. In other words, the respondent did not set up such defense in the written statement.

Second, the Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement.

Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way.

Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea. Continue reading “Contradictory defence of tenancy and adverse possession in a suit for possession”

Suspicion cannot replace proof in a criminal trial

Benefit of reasonable doubt

In a criminal trial suspicion however grave cannot take the place of proof and the prosecution to succeed has to prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the complicity of the accused. For this, the prosecution case has to be in the category of “must be true” and not “may be true”.

[Source: Khekh Ram vs. State of H.P., decided by SC on 10 November 2017]
A criminal trial is not like a fairy tale wherein one in free to give flight to one’s imagination and phantasm.

Continue reading “Suspicion cannot replace proof in a criminal trial”

Judicial Notice of a well known fact in public knowledge

Judicial notice of Satyam Scam of inflated profits:

B. Ramalinga Raju, Chairman, Satyam Computer Services Ltd. wrote a letter admitting inflated profits an bank/cash balances in financial statements which was addressed to the board of directors, SEBI and financial institutions; if could be admitted in evidence without formal proof?

Conclusion of Supreme Court:

The aforesaid letter, its contents and signature of the author of the letter – Mr. Raju, were never in dispute and nor at any point of time anyone questioned it. In other words, the existence of letter, its contents and signature of Mr. Raju on the letter were never doubted and nor its author (Mr. Raju) at any point of time retracted from his confessional statement made therein or denied having written such letter.

In my opinion, therefore, the letter in question was rightly received in evidence without requiring any further formal proof to corroborate its existence and contents. That apart, it being a “notorious fact” being in the knowledge of the whole World and especially those in the trade, the Courts could take judicial notice of such evidence as held by this Court in the case of Onkar Nath & Ors. Vs. Delhi Administration, (1977) 2 SCC 611. It is appropriate to quote the words of the leaned Judge- Justice Y.V.Chandrachud (as His Lordship then was), who speaking for the Bench held as under: Continue reading “Judicial Notice of a well known fact in public knowledge”

Willful Contempt and Mens Rea

Even if mens rea or guilty mind is not required to punish for contempt of court, the act alleged must be willful before a person is convicted for contempt.

Contempt of court by disobedience:

Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms. In civil proceedings one obvious form is a wilful failure by a party to the proceedings to comply with a court order made against him. By such a breach a party may frustrate, to greater or lesser extent, the purpose the court sought to achieve in making the order against him.

Sometimes the purpose a court seeks to achieve in making an order against a party to proceedings may be deliberately impeded or prejudiced by the conduct of a third party. This may take more than one form. The third party may be assisting, that is, aiding and abetting, a breach of the order by the person against whom the order was made. Then he is an accessory to the breach of the order. Continue reading “Willful Contempt and Mens Rea”

Pleading by an agent

Without pleadings, a party can not claim to be a mere agent of somebody.

Civil Procedure Code, 1908, Order 8 Rule 2.

Appellant cannot be permitted to say that though all the rights vested in it but it merely remained the agent of the Central Government. Acceptance of such a submission would require interpreting the expression `vesting’ as holding on behalf of some other person. Such a meaning cannot be given to the expression `vesting’.

It is a settled legal proposition that an agent cannot be sued where the principal is known. In the instant case, the appellant has not taken plea before either of the courts below. In view of the provisions of Order VIII Rule 2 CPC, the appellant was under an obligation to take a specific plea to show that the suit was not maintainable which it failed to do so. The vague plea to the extent that the suit was bad for non-joinder and, thus, was not maintainable, did not meet the requirement of law. The appellant ought to have taken a plea in the written statement that it was merely an `agent’ of the Central Government, thus the suit against it was not maintainable. More so, whether A is an agent of B is a question of fact and has to be properly pleaded and proved by adducing evidence.

[Source: National Textile Corp.Ltd vs Nareshkumar Badrikumar Jagad, decided by Sup Ct. on 5 September, 2011]

Medical examination of rape victim

DNA Test in Rape cases

Police directed to invariably resort to DNA test which is most important investigative tool to prove the offence or innocence

It has been seen that in number of cases relating to rape, the most powerful investigative tool which is available to the police is the DNA test which is seldom being resorted to.

The DNA report can either confirm or exclude the involvement of the accused. The police is directed that in every case under Section 376 of I.P.C.:-

(a) under which the doctor preparing the MLC of the prosecutrix prepares vaginal slides and clothing of the prosecutrix, which upon test by the FSL confirms the presence of human sperm then such slides must then be sent for DNA verification with the blood sample of the suspect.
(b) where the prosecutrix is rendered pregnant on account of the rape and if birth takes place, then a DNA verification be sought to ascertain paternity of the child which will again either confirm or exclude the suspect. If the foetus is aborted, then the tissue sample of the foetus be tested along with the sample of the suspect to see if they match, and
(c) in the event of the death of the prosecutrix during pregnancy, then also procedure enunciated in (b) to be followed.

[Source: Raja Burman @ Rahu vs The State Of Madhya Pradesh, MP High Court on 4 May, 2016]

Apparent agency between Doctor and MCO

Relationship between Doctor, MCO and Patient:

The relation of appearance and reality is a fundamental question of philosophy.

Medical negligence by Doctor:

Petitioner Wilhelmina Bradford suffered a significant injury to her foot resulting in its partial amputation because of the negligence of Dr. Steven Bennett, a podiatrist whom she had chosen for her treatment. She was able to see Dr. Bennett because he participated as a specialty care provider in the network of Respondent Jai Medical Systems Managed Care Organization, Inc. (“Jai MCO”), an entity that contracts with physicians, hospitals, pharmacies, and other providers to provide health care services to individuals and families enrolled in the State Medicaid program. Dr. Bennett was not an employee or agent of Jai MCO. But Ms. Bradford sought to hold Jai MCO liable for Dr. Bennett’s negligence on a theory of apparent agency – essentially, that Jai MCO created the appearance that Dr. Bennett was its employee and that she reasonably relied on that appearance.

What is Medical Care Orgnisation (MCO)?

Different organizations are designed to provide health care benefits while containing costs. An MCO’s cost containment policies, and the amount of control the MCO exercises over its members’ health care decisions, may vary according to the type and structure of the MCO. There are many different types of MCOs, the most common being health maintenance organizations (“HMOs”) and preferred provider organizations (“PPOs”).
An HMO typically contains costs by paying a provider a fixed prepaid amount for each member – sometimes referred to as a “capitation” payment – regardless of the services rendered by the provider. It may restrict members to a defined list of providers – sometimes called a “network” – from which the members may seek care financed by the HMO. It may require members to select a primary care provider from that network for basic care, and require that members obtain a referral from that physician for other services such as hospitalization and consultation with specialists. The HMO’s relationship with the physicians who serve its members can take a variety of contractual forms, including direct employment.
Jai MCO was an MCO similar in structure and operation to an HMO. ……Jai MCO does not employ its own health care providers; rather, it enters into contracts with physician groups, pharmacies, hospitals, and others to participate in its network and to provide health care services to its members. The health care providers that participate in its network are not precluded from belonging to other networks. Under Jai MCO’s plan, a member selects a primary care provider – a physician who attends to most of the member’s health care needs – from Jai MCO’s network. If the member needs specialty care, the member accesses those services by obtaining a referral from the primary care provider to one of the more than 3,000 specialists.

Doctrine of Apparent Agency :

Apparent agency is an equitable doctrine, whereby a principal is held responsible for the acts of another because the principal, by its words or conduct, has represented that an agency relationship existed between the apparent principal and its apparent agent.

The doctrine of apparent agency has both subjective and objective elements: a plaintiff must show that the plaintiff subjectively believed that an employment or agency relationship existed between the apparent principal and the apparent agent, and that the plaintiff relied on that belief in seeking medical care from the apparent agent. But the plaintiff must also show that the apparent principal created or contributed to the appearance of the agency relationship and that the plaintiff’s subjective belief was “justifiable” or “reasonable” under the circumstances – an objective test.

Apparent agency between Doctor and MCO:

The doctrine of apparent agency can be expressed in three elements:

1. Did the apparent principal create, or acquiesce in, the appearance that an agency relationship existed?

2. Did the plaintiff believe that an agency relationship existed and rely on that belief in seeking the services of the apparent agent?

3. Were the plaintiff’s belief and reliance reasonable?

Decision of US Supreme Court:

Ms. Bradford testified that she believed that Dr. Bennett was an employee of Jai MCO for two reasons – first, she had previously seen him at Eutaw Medical Center, one of the medical centers operated by Seunarine P.A., and second, she believed that Jai MCO employed the physicians, including Dr. Bennett, who accepted her Jai MCO card – i.e., who were in Jai MCO’s network. Although Jai MCO introduced evidence suggesting that her sighting of Dr. Bennett at the Eutaw Medical Center was inaccurate, a jury could accept her version and reasonably conclude that Ms. Bradford believed that Dr. Bennett was an employee of Jai MCO and relied on that belief in seeking treatment. Thus, she presented sufficient evidence to satisfy the subjective element of apparent agency.

The only representations by Jai MCO concerning its relationship with Dr. Bennett that appear in the record are the listing of Dr. Bennett in the provider directory, the referral forms that permitted Ms. Bradford to see Dr. Bennett through Jai MCO under the Medicaid program, and some general passages concerning providers in the member handbook.  It does not identify any of these providers as an agent or employee of Jai MCO.

Finally, the circumstances of Dr. Bennett’s treatment of Ms. Bradford – which did not involve representations by Jai MCO – did not suggest that the MCO had an agency relationship with the podiatrist. The initial examination of Ms. Bradford’s foot and the post-surgery follow-up visits took place at Dr. Bennett’s private office at Penn North Foot Care. The surgery was performed at Bon Secours Hospital, which is not part of Jai MCO’s network. These there was insufficient evidence to create a question for the jury because Ms. Bradford’s reliance was not justifiable given the actual representations made by Jai MCO concerning its relationship with Dr. Bennett and the other circumstances of this case.
When a court makes reference to “common knowledge” in this context, it is essentially taking judicial notice of decisive facts without supporting its conclusion in the evidentiary record or by reference to any authoritative source. Cf. Maryland Rule 5-201(b) (facts subject to judicial notice). We should do so only when the “common knowledge” is so well accepted that there is no possibility that a person of ordinary intelligence and education would come to a different conclusion. In this regard, it is not clear that the details of health care finance are “common knowledge” even to well-educated members of our society.

[Source: Jai Medical v. Bradford (Maryland Supreme Court USA)]

Critical Analysis of the Jai Medical v. Bradford:

This judgement discloses that if right questions are not raised right answers can not be found. Why principle of apparent agency was invoked in this manner, is not clear. If a patient goes to a doctor for treatment, doctor does charge a fee. It is strange that court did not follow the common sense principle of ‘follow the money’ trail. The simple question was:

Weather the Doctor who operated upon the patient was acting in his personal capacity or on behalf of Jai MCO?

This question could only be answered by showing the trail of money which flowed to the Doctor. Who paid the Doctor? If the patient paid then it was personal contract between the Doctor and Patient but if Jai Medical paid the Doctor then obviously the Doctor was acting as an agent of Jai Medical. However the judges did not ask right question and justice was denied to a poor widow who was also saddled with cost.

Needless to add, the evidence of payment between Jai Medial and Dr. Bennett was a fact which was in personal knowledge of these two parties and plaintiff can not be saddled with burden of proving such fact. If these parties did not come clear of this fact, court should have drawn an adverse inference in terms of Morris v. Union Pacific R. R., 373 F.3d 896, 900 (8th Cir.2004).

Further if the right questions were not asked in the trial, the Supreme Court should have remanded the case for rehearing rather than jumping to a conclusion on question which obtruded the real issue.


Burden of proof in patent case.

Patent proceedings: Determination of burden of proof

 Instrument of Patent

When a licensee seeks a declaratory judgment against a patentee that its products do not infringe the licensed patent, the patentee bears the burden of persuasion on the issue of infringement. [Pp. 6–11.]

This conclusion is strongly supported by three settled legal propositions: First, a patentee ordinarily bears the burden of proving infringement, Continue reading “Burden of proof in patent case.”

Loyalty oath as proof of innocence.

Loyalty oath for tax exemption:

Innocence: Negative burden of proof by loyalty oath.

The State of California allowed an exemption of property tax for veterans of World War II. Anyone desiring to claim the exemption was required to complete a standard form of application and submit the form with the local tax assessor. In 1954, the form was revised to add a loyalty oath which the applicant must sign which stated

“I do not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means, nor advocate the support of a foreign government against the United States in event of hostilities.”

The appellants refused to sign the oath contending the condition of requiring the oath in order to obtain a tax exemption was unconstitutional.

The Supreme Court of America ruled as under:

“…when the constitutional right to speak is sought to be deterred by a State’s general taxing program due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition. The State clearly has no such compelling interest at stake as to justify a short-cut procedure which must inevitably result in suppressing protected speech. Accordingly, though the validity of § 19 of Art. XX of the State Constitution be conceded arguendo, its enforcement through procedures which place the burdens of proof and persuasion on the taxpayer is a violation of due process. It follows from this that appellants could not be required to execute the declaration as a condition for obtaining a tax exemption or as a condition for the assessor proceeding further in determining whether they were entitled to such an exemption. Since the entire statutory procedure, by placing the burden of proof on the claimants, violated the requirements of due process, appellants were not obliged to take the first step in such a procedure.”

[Source: Speiser v. Randall, 357 U.S. 513 ]